Commentary to article 212. Interrogation protocol The Criminal Procedure Code of the Republic of Kazakhstan

The course and results of the interrogation shall be reflected in a protocol drawn up in compliance with the requirements of Article 199 of this Code.

The testimony is recorded in the first person and, if possible, verbatim. Questions and answers to them are recorded in the order that took place during the interrogation. The protocol also reflects those questions of the persons participating in the interrogation that were withdrawn by the person conducting the pre-trial investigation, or to which the interrogated refused to answer, indicating the reasons for the withdrawal or refusal.

The protocol of the first interrogation shall contain information about the person being interrogated, including: surname, first name, patronymic (if any), time and place, citizenship, nationality, education; marital status, place of work, occupation or position, place of residence, as well as other information that may be necessary under the circumstances. cases, in accordance with the rules of part four of Article 199 of this Code.

During subsequent interrogations, information about the person being interrogated, if they have not changed, can be limited to indicating his last name, first name and patronymic (if any).

The interrogation protocol of the suspect indicates the presence or absence of a previous criminal record.

The interrogated person may produce diagrams, drawings, drawings, diagrams, which are attached to the protocol, and a note is made in it.

All persons who participated in the interrogation are indicated in the protocol. Each of them must sign the protocol, as well as all additions and clarifications made to it.

After a free story, the interrogated person has the right to present his testimony in his own hand. After the testimony is presented in his own hand and signed by the interrogated person, the person conducting the pre-trial investigation may ask additional and clarifying questions.

At the end of the interrogation, the protocol is presented for reading to the interrogated person or announced at his request. The requirements of the interrogated person to make additions and clarifications to the protocol are subject to mandatory execution.

The fact of familiarization with the testimony and the correctness of its recording is confirmed by the interrogated person's signature at the end of the protocol. Each page of the protocol is also signed by the interrogated. If the interrogated person refuses to sign the protocol, the person conducting the pre-trial investigation finds out the reasons for the refusal, enters them in the protocol and certifies the protocol with his signature.

If the interrogated person is unable to personally sign the protocol due to a physical disability or other reasons, at his request, the protocol is signed by a defender, representative or other person whom the interrogated person trusts, which is noted in the protocol.

If an interpreter or a person with sign language skills participated in the interrogation, they also sign each page and the protocol as a whole. They also sign the translation of the interrogated person's handwritten testimony.

The interrogation protocol must meet the general requirements for the preparation of an investigative report (see the commentary to Article 199 of the CPC), as well as the provisions of the commented article. The significance of the interrogation protocol lies in the fact that the testimony acquires the meaning of evidence only after they are recorded (see the commentary to Part 1 of Article 123 of the CPC).

The preparation of an interrogation protocol begins with a record of the place (locality), date (date, month, year) and time (hour, minute) of the beginning and end of the interrogation; indications of the person conducting the interrogation (title, position, indicating the body and its structural unit); information about other persons participating in the interrogation with indicating their procedural status, surname, first name, patronymic and address of residence. In case of interruption of the interrogation, the time of the announcement of the break, its reasons and its resumption must be indicated. It seems that if an interrogation is conducted at night, circumstances should be indicated confirming that the interrogation is urgent (see the commentary to Part 2 of Article 209 of the CPC).

The fact that the rights and obligations of the participants in the interrogation are clarified is noted in the protocol, which is subject to certification by the signatures of the persons participating in the interrogation.

Testimony is recorded in the interrogation protocol, as a rule, after the oral interrogation is completed, which includes a free account of the interrogated person, questions from the interrogator, other persons participating in the interrogation, if they participate, and answers to the interrogated person's questions.

It follows from the requirement of the law to record testimony in the first person and, if possible, verbatim, that the person conducting the interrogation does not have the right to interpret, correct, or otherwise present the testimony of the interrogated person in the interrogation protocol. Such a recording presupposes their fixation while preserving the sequence of presentation and speech characteristics of each interrogated person, which makes it possible to correctly assess their reliability. This requirement of the law is due to the fact that when testifying about the same circumstances, different interrogated persons will describe them differently due to their level of education, memory properties, psycho-physiological state and other personality and individual characteristics, which, of course, affect the specifics of the language of presentation. This presentation differs from one person to another in different speech features - in different order and sequence of presentation, sentence construction, literacy level, word usage (colloquialisms, professional and slang terms and expressions (in this case, an explanation of their meaning should be given in the protocol).

Therefore, the presence of verbatim coincidences in the interrogation protocols of different persons, the same written and spoken phrases, the same sequence of sentences and the same description of circumstances may indicate that the texts of such interrogation protocols are not originals - they were either edited by the person conducting the interrogation, or were "adjusted" to the version of the investigation. In such cases, such interrogation protocols should be considered inadmissible as evidence by virtue of paragraph 1 of Part 5 of Article 112 of the CPC.

Obscene and offensive words and expressions are not subject to recording. Irrelevant information and repetitions are also not subject to recording. All questions of both the person conducting the interrogation and the persons participating in the interrogation (including questions that were assigned by the interrogated person) and the answers to them, as well as additions and comments on the conduct of the interrogation, are subject to recording in the interrogation protocol.

The background information of the interrogated person is indicated in the introductory part of the protocol of the first interrogation. Last name, first name, patronymic, time and place of birth are indicated according to the identity document of the interrogated person. The rest of the information is recorded from the words of the interrogated person. Information about the presence or absence of a criminal record is clarified only from the suspect in compliance with the provisions of art. 79 of the Criminal Code. This information is also established by sending a corresponding request to the territorial department of the Committee on Legal Statistics and Special Accounts at the Prosecutor General's Office of the Republic of Kazakhstan.

If a security measure has been applied to the victim or witness in the form of restricting access to information about the protected person (paragraph 2, part 1, Article 97 of the CPC), then information about their identity must be removed from the materials of the criminal case, they are not given in the interrogation protocol, but their pseudonym is indicated (part 4, Article 199 of the CPC).

The protocol of the interrogation indicates the explanation of the rights and duties of the interrogated person. If the interrogated person is a witness or a victim, then it is indicated that they are warned of criminal liability for refusing to testify and knowingly giving false testimony.

During subsequent interrogations (repeated, additional, or face-to-face), the law allows for the possibility of specifying only the last name, first name, and patronymic, without specifying personal data. At the same time, the data provided for in Part 2 of Article 212 of the CPC may be indicated during the interrogation, if there is a need to clarify or supplement them. It would be advisable to indicate that the personal data are given in the protocol of the first interrogation, indicating the date of its production..

During his interrogation, the interrogated person has the right to use not only diagrams, drawings, drawings and diagrams made by him, but also, as it appears, documents and records to clarify, concretize, confirm or visually illustrate his testimony. All these materials must be handed over to the person conducting the interrogation, they are an appendix to the interrogation protocol, but they do not replace it and cannot be used as independent evidence. The list of attached materials should be indicated in the protocol. If the submitted materials have the value of independent evidence (document, material evidence), the investigator has the right to attach them to the case in accordance with Article 261 of the CPC.

The participants in this investigative action include:

- the person conducting the pre-trial investigation;

- the person being interrogated (the suspect, the witness entitled to defense and their defenders, the victim and his representative, the legal representative, the witness and his lawyer, the expert, the specialist, the civil plaintiff, the civil defendant and their representatives);

- translator, if the interrogated person does not speak or does not know enough the language in which the proceedings are conducted.;

- a specialist, if necessary, using the special knowledge necessary to assist in the interrogation.

All persons participating in the interrogation must be indicated in the protocol with an indication of their procedural status and a note explaining to them their rights and obligations and the procedure for conducting the interrogation. Not only the interrogated person, but also other persons participating in this investigative action have the right to indicate to the investigator the need to make additions and clarifications to the protocol that were made during the interrogation. After the protocol of the interrogation is drawn up, it must be submitted for review and signature to all the persons involved.

After establishing the identity of the interrogated person and other persons participating in the interrogation, explaining to them the rights, duties and responsibilities, the person conducting the pre-trial proceedings invites the person called for questioning to testify on the merits of the case in a form and sequence convenient for him. After the interrogated person has freely described the circumstances of the case, the person conducting the investigation must explain to the interrogated person his right to present his testimony in his own hand. In case of consent, the interrogated person is given such an opportunity, as indicated in the interrogation protocol. The interrogating official, after reviewing the handwritten record of the testimony, has the right to point out the incompleteness or inaccuracy, its inconsistency with the oral testimony of the interrogated. And in this regard, ask additional and clarifying questions. Questions and answers to them are subject to entry in the protocol and must be certified by the signature of the interrogated person.

In case of refusal of such a right, the testimony is recorded by an official.

All questions asked are subject to logging, including those that were assigned by the interrogator, indicating who the question was asked by (defender, representative, etc.).

Upon completion of the interrogation, the person conducting the interrogation must inform the interrogated person of his right to familiarize himself with the protocol by reading it or, at his request, the protocol will be announced. At the request of the interrogated person, the specified additions, clarifications, and amendments must be made to the interrogation protocol, which must be certified by the signatures of the interrogator and the interrogated person.

After reading (reading out) the interrogation protocol and making the required clarifications, additions, and amendments to it, the interrogated person is obliged to certify with his signature the correctness of recording his testimony at the end of each page of the protocol, if it is written on several pages, and at the end of the protocol it should be indicated about familiarization with the protocol by reading or about the announcement of the protocol on at the request of the interrogated person, which must also be certified by his signature. The signature of the interrogated person must be certified by all additions and clarifications that were made by him after reading or announcing the protocol, as well as corrections made to the protocol (at the end of the corresponding page, or at the end of the protocol indicating the nature of the correction). If the interrogated person refuses to sign the protocol, the investigator must find out the reasons for it and, if the interrogated person explains them, he enters them into the protocol and certifies the protocol with his signature.

If an interpreter or a person with sign language translation skills participates in the interrogation, the protocol must specify that they are explained their rights, duties and a warning about criminal liability for deliberately incorrect translation, which must be certified by his signature, and he is also required to sign each page and the protocol as a whole. The interrogation protocol must also indicate to the interrogated person that the oral translation of the protocol corresponds to his testimony. If the translation of the interrogation protocol was made in writing, the interrogated person and the translator must sign each page and the protocol as a whole.

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Source: The PARAGRAPH Information System Document: Commentary to Chapter 26 of the Criminal Procedure Code of the Republic of Kazakhstan "Interrogation and confrontation" (Suleimenova G.Zh. professor, member of the Almaty City Bar Association)

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